State v. Blankenship
| Decision Date | 01 December 2000 |
| Docket Number | No. 27461.,27461. |
| Citation | 542 S.E.2d 433,208 W.Va. 612 |
| Parties | STATE of West Virginia, Plaintiff Below, Appellee, v. Danny L. BLANKENSHIP, Defendant Below, Appellant. |
| Court | West Virginia Supreme Court |
David A. Downes, Front Royal, Virginia, Attorney for the Appellant.
Darrell V. McGraw, Jr., Attorney General, Silas B. Taylor, Senior Deputy Attorney General, Attorneys for the State of West Virginia.
This appeal was filed by Danny L. Blankenship, appellant/defendant below (hereinafter referred to as "Mr. Blankenship"), from his conviction of one count of obtaining money by false pretenses. The Circuit Court of Fayette County sentenced Mr. Blankenship to not less than one nor more than ten years in the penitentiary. In this appeal, Mr. Blankenship assigns as error: (1) that the evidence was insufficient for a conviction, (2) the denial of certain jury instructions, and (3) improper closing argument remarks by the prosecutor. Based upon the parties' arguments on appeal, the record designated for appellate review, and the pertinent authorities, we conclude that the Circuit Court of Fayette County committed no error. The judgment is therefore affirmed.
On September 8, 1997, Mr. Blankenship drove by the home of Bobby and Nancy Dix (hereinafter referred to as "the Dixes"). He inquired as to whether the Dixes wanted their driveway repaved.1 Mr. Blankenship indicated that he had some asphalt left from a previous paving job. While the trial testimony revealed that Mr. Blankenship could not give a specific cost amount for the paving, he estimated that the paving job would cost between $3,000.00 and $3,500.00.2 A contract for the work was executed by Mrs. Dix. The contract did not include a cost amount or estimate when it was signed.
On September 9, 1997, Mr. Blankenship and his crew began work on the driveway. As the work progressed, Mr. Blankenship informed Mr. Dix that the cost would probably be around $4,300.00. At some point on the same day, the cost estimate reached $5,000.00.
Work was stopped on the pavement for a few days because of rain. When weather permitted, Mr. Blankenship and his crew returned and finished the pavement job. Mr. Blankenship demanded $6,000.00 when the work was completed. Mrs. Dix questioned the amount charged. Mr. Blankenship explained to her how he arrived at the figure, and demanded payment in cash. Mrs. Dix went to a bank, obtained $6,000.00 in cash, and paid Mr. Blankenship.3
The Dixes believed that Mr. Blankenship took advantage of them by charging $6,000.00 for the pavement. They were not satisfied with the quality of the work and attempted at least on one occasion to contact Mr. Blankenship.4 However, they were unable to locate him.
The Dixes eventually cooperated with authorities in an investigation of Mr. Blankenship's pavement work.5 The investigation lead to a five count indictment that included a charge of obtaining money by false pretenses.6 A jury trial was held on March 22 and 23, 1999.7 The jury returned a verdict finding Mr. Blankenship guilty of obtaining money by false pretenses. Thereafter, the circuit court sentenced Mr. Blankenship to not less than one nor more than ten years in the penitentiary. It is from this sentence that Mr. Blankenship now appeals.
The first issue presented by Mr. Blankenship is that the evidence was insufficient to find him guilty of obtaining money by false pretense.9 In reviewing a challenge to the sufficiency of the evidence, we have held:
The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.
Syl. pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). It was further stated by this Court in syllabus point 3 of Guthrie:
A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent, they are expressly overruled.
With regard to the specific crime for which Mr. Blankenship was convicted, this Court has previously explained that "[i]n order to obtain a conviction for the crime of obtaining money by false pretenses ... the prosecution must prove the essential elements of the offense, namely: (1) the intent to defraud; (2) actual fraud; (3) the false pretense was used to accomplish the objective; and (4) the fraud was accomplished by means of the false pretense, i.e., the false pretense must be in some degree the cause, if not the controlling cause, which induced the owner to part with his property." State v. Moore, 166 W.Va. 97, 108, 273 S.E.2d 821, 829 (1980) (citation omitted).
Mr. Blankenship submits several arguments in support of his insufficiency of evidence claim. During the trial, the State presented expert testimony that the normal price for the work on the Dixes' driveway was $1,569.00. Mr. Blankenship contends that the simple fact that he charged $6,000.00 for the pavement work, and an expert for the State opined the price of the work should have been $1,569.00, is not dispositive of a "false pretense" charge.10 The State concedes this point, but argues that it is irrelevant. We agree with the State that this issue carries no weight on the question of insufficiency of evidence.11
Mr. Blankenship also argues that there was no evidence to establish the fourth element of a false pretense charge, i.e., "the false pretense must be in some degree the cause, if not the controlling cause, which induced the owner to part with his property." Mr. Blankenship contends that there was no evidence to show that the Dixes relied on any price except the amount actually demanded by him. The State responds that there was sufficient evidence to show Mr. Blankenship's "deliberate and successful effort to mislead the Dixes into believing that the price would be far less than he actually intended to charge."
In reviewing the testimony of the Dixes, we find the jury could conclude that the Dixes were induced to enter the contract on cost estimates that were far less than that which was eventually charged. Further, the jury could have reasonably concluded, based upon the evidence, that Mr. Blankenship intended to charge a price far above his initial estimate.12
Mr. Blankenship made a second estimate after his crew had torn up the Dixes' pavement.13 The State properly asserts that at this point the Dixes could not realistically have terminated the contract. Otherwise, they would have been left with a torn up driveway.14
In sum, we find the evidence was sufficient beyond a reasonable doubt for the jury to return a verdict finding Mr. Blankenship guilty of obtaining money by false pretense.
Mr. Blankenship has assigned as error several jury instructions. We have stated that, "[i]n general, the question on review of the sufficiency of jury instructions is whether the instructions as a whole were sufficient to inform the jury correctly of the particular law[.]" State v. Miller, 197 W.Va. 588, 607, 476 S.E.2d 535, 554 (1996). We have also articulated our standard of review of jury instructions, in syllabus point six of Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995), as follows:
The formulation of jury instructions is within the broad discretion of a circuit court, and a circuit court's giving of an instruction is reviewed under an abuse of discretion standard. A verdict should not be disturbed based on the formulation of the language of the jury instructions so long as the instructions given as a whole are accurate and fair to both parties.
"Of course, our review of the legal propriety of the trial court's instructions is de novo." Skaggs v. Elk Run Coal Co., Inc., 198 W.Va. 51, 63, 479 S.E.2d 561, 573 (1996) (citation omitted). We further stated in syllabus point four of State v. Guthrie, supra:
A trial court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not mislead by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. A trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to a trial court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion.
We will review each of the jury instruction issues individually.
1. False Pretense Instruction. Mr. Blankenship first argues that the trial court committed error in...
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